Comprehension problems that jurors encounter with expert evidence in online child pornography trials

ABSTRACT

Over the last two decades, there has been a massive world-wide increase in the prosecution of charges of possessing online pornography. Digital expert evidence is relied upon in such prosecutions in order to satisfy the charge element of ‘possession’. Little is known about the effectiveness of such expert evidence in proving that the defendant’s computer contained such offensive material. This article provides a qualitative analysis of how effective such expert evidence is by analysing three illustrative contemporary Australian online pornography trials where the authors interviewed some of the jurors and other trial participants about their perceptions of the digital expert evidence. We found that jurors had difficulty with the way some experts presented information rather than the complexity of the information. Practical suggestions to improve digital expert evidence are discussed, including the need for more and better use of visual aids.

KEYWORDS:

• Expert evidence
• digital evidence
• juror comprehension
• testimony complexity

Acknowledgements

The authors wish to thank Evangelia Diamantopoulos for their research assistance with this article.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 For the doctrinal and jurisprudential aspects to the element of ‘possession’, see Clough (2012). For a discussion of the practical difficulties of collating such forensic evidence see Jewkes and Andrews (2005).

2 In the UK, Sir Roy Meadows’ flawed expert evidence on Sudden Infant Death Syndrome resulted in the wrongful conviction of mothers murdering their babies. In Canada, Ontario’s top forensic pathologist Charles Smith gave flawed evidence about ‘shaken baby syndrome’ for over 20 years. DNA evidence alone saw an Australian man, Farah Jama, being wrongfully convicted of rape.

3 The case studies are drawn from research funded by two Australian Research Council grants (LP0990833 and LP120100291), conducted in collaboration with the Australasian Institute of Judicial Administration and the Australian and New Zealand Policing Advisory Agency. Both authors were chief investigators. A detailed explanation of the data collection process and preliminary findings of the project are reported in Freckelton et al. (2016).

4 A member of the research team, including one of the authors, observed the three trials and took contemporaneous notes.

Additional information

Funding

The research was funded by two Australian Research Council grants (LP0990833 and LP120100291), conducted in collaboration with the Australasian Institute of Judicial Administration and the Australian and New Zealand Policing Advisory Agency. Both authors were chief investigators.